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Tobacco advertising ban - A letter to Byrne, 10th October 2000

Mr. D. Byrne
Commissioner
European Commission
200 rue de la Loi
B-1049 Brussels
10th October 2000

Tobacco advertising ban

I write with reference to your statement last week following the annulment by the European Court of Justice of the Directive on tobacco advertising and sponsorship when you said that some forms of tobacco advertising, for example in the press (newspapers, magazines and periodicals) might be subject to a new proposal for a ban from the Commission.

Before you consider proceeding with such a proposal, the European Publishers Council (see membership list attached) would like you to consider the wider implications for the freedom of expression and to review the background from our point of view. This is not just a tobacco issue. This is not just a health issue. A directive banning press advertising will have wider repercussions than the loss of tobacco advertising, setting a damaging precedent for the future of the freedom to advertise and the free circulation of newspapers and magazines (in print and on the Internet) throughout the internal market of the EU.

To proceed with a new directive, singling out the advertising of tobacco products in the press raises three major questions:

1. What are the implications of such a Directive for the freedom to advertise any product or service in the European Union in the future? For example, alcoholic beverages, advertising to children, car advertising or any form of advertising where there were divergent rules at national level which might theoretically lead to obstacles of importation of press (and Internet) services?
2. Would a such a directive on tobacco advertising be proportionate (according to the Treaty and the specific principles agreed by the European Commission in the Green Paper and subsequent Communication on Commercial Communications)?
3. Would a directive banning advertising in the press only, create unfair competition (a) between EU-based publishers and those outside the EU wherever Member States had to allow the free circulation of publications from third countries containing tobacco advertising within their jurisdiction and (b) if any future directive only dealt with press advertising, ignoring all forms of sports sponsorship and other forms of commercial promotion (e.g. on billboards, promotional items, etc.) which may not cross borders but logically couldn't be ignored when considering the original reasons for national bans. Motor racing and other types of sport which attract sponsorship by tobacco companies may appear more glamorous and appealing to certain groups than advertisements in newspapers. Billboards are more prominent and appealing to young people than press advertising.

Before returning to the specifics of a ban on tobacco advertising I would like to give you some background from our perspective as some of this pre-dates your appointment to the Commission. In 1991 and 1992, the European Publishers Council ran an advertising campaign in over 250 newspapers and magazines throughout the European Union against unwarranted restrictions from the European Community on advertising.

We took this step because the then President of the European Commission (Jacques Delors) had embarked upon a plan to harmonise the rules of the game for the press and the European Parliament had turned what was originally a harmonising directive on the content of tobacco advertising into a total ban. We feared for the future of all forms of advertising and in particular were concerned that the European commission was failing to take an overall approach to the role and benefits of advertising in the functioning of the internal market. Self-regulation of advertising was very badly understood by the Commission at that time and the industry took steps to improve its understanding. The EPC together with other industry bodies also founded a new body, which you now know as the European Advertising Standards Alliance (EASA) to make sure that national systems of self-regulation were properly co-ordinated and that consumers complaining in their home country about advertising from another would have their complaints dealt with by the self-regulatory body in the country of origin of the advertisement. When we finally met Mr. Delors, he undertook to consult the EPC on any measure that might affect the press before final adoption by the Commission and agreed that the Commission should take a strategic look at the role and benefits of advertising.

At the end of 1992, John Mogg announced that his services would produce a green paper on commercial communications which was adopted by the European Commission in 1995 which we welcomed, particularly the establishment of the mechanism to test the proportionality of measures in this field (past or future). Mr. Delors and his successors have generally upheld his commitment to consult us on measures which would affect the press.

We note that the Court specifically stated that a directive based on 100a must improve the conditions for the establishment and functioning of the internal market. The Court also noted (paragraph 97) that no obstacles currently exist to the importation of press products (containing tobacco advertising). Although the Court goes on to say that the trend in national legislation is towards greater restrictions on advertising (for health reasons), and that obstacles might therefore arise in the future, we would oppose absolutely a directive based on a theoretical possibility and one which is going to be increasingly difficult to impose given the nature of the free flow of information and press products on the Internet.

Furthermore, if a MS attempted to restrict the freedom of the press to circulate freely within the European Union we would challenge that Member State directly on the grounds that it was legally published in the country of origin. The EU Treaty guarantees free circulation of goods and services so long as they comply with the rules of the country of origin. Thus, newspapers, regardless of their content (both editorial and advertising) have been allowed to circulate within the EU under the principle of mutual recognition. A statutory advertising ban based on article 100A undermines the legal principle of mutual recognition.

Let me end by restating that we passionately believe that this is not just a tobacco issue. You yourself have stated that you have no wish to see a ban on alcoholic beverage advertising. If you introduce a directive banning advertising of tobacco products on the grounds that this is necessary to ban advertising (where divergent rules at national level exist) to ensure the free flow of press products you would, we believe be opening the floodgates to a whole range of restrictions on advertising the moment that the proposal entered the European Parliament for first reading. Every health and consumer lobby across the European Union would seek to extend the tobacco ban to alcohol and probably advertising to children. That is why the EPC fought the original directive and that is why we would do so again.

I would very much like the opportunity to discuss this issue with you as soon as you can.

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